DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 26/2015
Date of Institution : 15.01.2015
Date of Decision : 12.06.2015
Gianjit Singh aged about 60 years son of Sh. Gurajmer Singh resident of Street No. 2, Shakti Nagar, Barnala, Tehsil and District Barnala.
…Complainant
Versus
State Bank of Patiala, Main Branch, Near Civil Hospital, Rambagh Road, Barnala, through its Manager.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. S.S. Dhaliwal Advocate counsel for the complainant.
Sh. A.K. Jindal Advocate counsel for the opposite party.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Gianjit Singh has filed the complaint under Consumer Protection Act, 1986 (hereinafter called as Act) against State Bank of Patiala (hereinafter called as opposite party).
2. The facts emerging from the present complaint are that the complainant was having Saving Bank Account bearing No. 55030394998 with the opposite party and used to pay the annual charges of the ATM machine, therefore, used to get ATM service of the opposite party. The complainant further pleaded that on 6.11.2014 he used the ATM machine of the opposite party at Mini Bus Stand Barnala and has withdrawn the amount of Rs. 15,000/- vide entry No. 0917, 0918 and 0919 of Rs. 5,000/- each. However, after some time when he checked his remaining balance then he was astonished to see that an entry has been made from his account by computer or due to the technical defect of the Bank and a sum of Rs. 25,000/- was deducted automatically at 15:59 on 6.11.2014 vide entry No. 0920 as per slip of balance enquiry. Thereafter, the complainant approached to the Manager of the Bank and told him the entire story, but the Manager of the Bank told that the entry has been made by mistake in the computer and also told that the complainant should give a written complaint and they would check the videography and after the inquiry they would refund the payment in his account. However, till today no reimbursement has been made by them. Again the complainant approached to the Manager of the Bank, but the Manager told the complainant that he cannot do anything and it is the higher authorities, who would be competent to take the decision after inquiry. It is alleged that due to the said unfair trade practice and deficiency in service, the complainant suffered financial loss as well as mental agony and harassment. Hence, the present complaint is filed seeking the following reliefs.
To pay Rs. 25,000/- alongwith interest.
To pay Rs. 50,000/- as compensation.
To pay Rs. 10,000/- as litigation expenses.
3. Upon notice of this complaint, the opposite party appeared and filed written version taking preliminary objections on the ground of locus-standi or cause of action, jurisdiction, flagrant abuse of process of law, non-joinder of necessary party and suppressing the material facts from this Forum. On merits, they admitted the complainant's saving account in their Bank. However, they submitted that it is the Head Office, who maintains numerous ATM's in the area of Barnala City, by engaging Private Contractors. The alleged ATM (Mini Bus Stand) is also under the control of Private Contractor, who maintains the functioning of said ATM.
The opposite party further submitted that the employees of the opposite party Bank have no concern with the alleged ATM. Even the employees of the opposite party Bank neither filled the cash nor check the daily balance of the ATM. The employees of the Private Contractor maintains the cash and daily routine balance in the said ATM. It is further submitted that the employees and Branch Manager of the opposite party Bank duly informed to the complainant that the ATM machine is being maintained by the Private Contractor and further that they cannot provide the videography of the ATM on that day and it is the Head Office, who can provide the same.
However, the opposite party denied that the Manager of the Bank assured the complainant to refund his amount in his account. It is also pleaded that that complainant instead of giving a written complaint to the Higher Officials of the Bank filed the present complaint on frivolous ground. They have also denied any deficiency in service on their part and finally prayed for the dismissal of complaint.
4. In order to prove his case the complainant tendered into evidence copy of passbook Ex.C-1, copy of receipts/slips Ex.C-2 to Ex.C-6, his own affidavit Ex.C-7 and closed his evidence.
5. To rebut the case of the complainant the opposite party tendered into evidence affidavit of Charanjit Singh Ex.OP-1, copy of agreement for outsourcing of ATM's and related service Ex.O.P-2, copy of E-mails Ex.O.P-3 and Ex.O.P-4 and closed the evidence.
6. We have heard the learned counsel for the parties and have gone through the file carefully.
7. Before adverting to the merits of the case, it is relevant to deal with the preliminary objections raised by the opposite party particularly in regard to the non joinder of necessary party. The learned counsel for the opposite party has argued that the head office of the opposite party bank is running numerous ATMs in the area of Barnala city by engaging the private contractors. It is also contended that opposite party bank provides ATM services to their customers through M/s Financial Software and Systems Private Ltd., 502-A, 5th Floor, South Block, TIDEL Park No. 4, Canal Bank Road, Taramani, Chennai-600113. It is also contended that the head office of the opposite party bank entered into an agreement with the said service provider, therefore, the said agency is a necessary party and without impleading the said party it is impossible to decide the present matter effectively and completely. In support of his arguments the opposite party placed on record photocopy of the agreement Ex.OP-2 on the file. The head note of the agreement shows that it is pertaining to the outsourcing of ATM and related services between the State Bank of India and its associate banks and M/s Financial Software and Systems Private Limited.
It is relevant to refer term 8.5 mentioned on page 51 of the agreement Ex.OP-2 which reads as “In case of any customer complaint regarding non receipt of cash, FSS must immediately verify the cash on the request of the Bank.” Further, it is relevant to refer term 8.6 mentioned on the same page of the agreement which reads as “All notices and claims (including copies) must be delivered by express mail, same day or overnight courier providing proof of delivery. Notices will be deemed given on the day received, and must be addressed to.” Further, it is also relevant to refer term 9.1 mentioned at page 51 of the agreement pertaining to recovery of losses which also reads as “In case of any ATM loss (es), discrepancy/difference in the report generated on the ATM and the physical/actual cash, if after FSS investigation (as stated in clause 8 above), it is proved that the shortage/difference of cash, if any, between the report generated and the physical cash, is on account of the lapses on the part of the CIT, FSS will make the payment within 10 (ten) days from the day it is proved.”
It is pertinent to mention here that the complainant has not impleaded the head office of State Bank of Patiala who has entered into an agreement with M/s Financial Software and Systems Private Limited. Moreover it was contended by the learned counsel for the opposite party that the entire control of calling all the reports from the said FSS is in the hands of the head office of the opposite party.
It is also the case of the opposite party that the employees of the opposite party bank have no concern with the alleged ATM. Even, the employees of the opposite party bank neither filled the cash nor check the daily balance of the concerned ATM and it is the employees of the private contractor who are maintaining cash and check daily routine balance in the said ATM. It is also submitted that the employees and the Branch Manager of the opposite party bank duly informed to the complainant that the ATM machine is maintained by the private contractor and they are not in a position to provide the videography of the ATM of that day and only their head office can provide the videography of the said ATM. Even, the Manager of the opposite party bank has provided the addresses of the head office and that of the private contractor to the complainant.
8. In case titled M.O.H. Leathers Versus United Commercial Bank reported in 2012 (4) CLT-119 the Hon'ble National Commission New Delhi has held that the named parties were necessary parties to answer the claim of the complainant in an effective manner and in order to avoid multiplicity of the proceedings and the complainant ought to have joined them. It is further held that, the complaint not thrown out as one bad for non-joinder of necessary parties because by not impleading the necessary parties, the complainant has done so at his peril and will be deemed to have given up his claim against them and has restricted his claim qua the deficiency/negligence alleged on the part of the OP-bank.
Similar view was also taken by the Hon'ble National Commission, New Delhi in case titled UCO Bank Versus Santosh Kumar Ray reported in II (2015) CPJ-263 (NC) on the question of impleadment of necessary parties.
9. In view of the above discussion we are of the view that without impleadment of the Head office of the State Bank of Patiala as well as M/s Financial Software and Systems Private Ltd., 502-A, 5th Floor, South Block, TIDEL Park No. 4, Canal Bank Road, Taramani, Chennai-600113, this matter cannot be decided completely and effectively. Therefore, the present complaint is dismissed as not maintainable. However, the complainant is at liberty to file a fresh complaint on the same cause of action after impleading the aforesaid parties in accordance with law, if he so desired. No order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
12th Day of June 2015
(S.K. Goel)
President.
(Karnail Singh)
Member.
(Vandna Sidhu)
Member.
